ALJDEC

00F-C990419-BFS · Department of Building and Fire Safety · 2000-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 17, 2000 APPEARANCES: Robert and Lacey Oviedo, Complainants, in heir own behalf No one appeared on behalf of the Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainants purchased their Cavco manufactured home from the Respondent in September, 1999. The total price was approximately $80,795.00. 2. The home was set up in Claypool, Arizona, in November 1999. 3. At the time of, and after the set up, the Complainants noted numerous problems with the home. The problems were not timely corrected by either the dealer or the manufacturer, and the Complainants filed their complaint with the Department Of Building and Fire Safety-Office of Manufactured Housing (Department). 4. Department inspector, Dennis Butzen (Butzen), inspected the home on March 20, 2000. He verified a total of approximately 44 items against the manufacturer and dealer. Subsequently certain corrections were accomplished but others were not completed or were unsatisfactory. 5. On May 22, 2000, a Citation and Complaint was issued to the manufacturer (1 item) and dealer (25 items), as Respondents. 6. The single item which was still to be corrected by the manufacturer was completed and the Citation and Complaint against the manufacturer was dismissed by Order dated June 21, 2000. 7. The Notice of Hearing was issued to the Respondent dealer only, on June 23, 2000. It asserted 24 of the dealer items from the Citation and Complaint were not corrected. 8. It is a matter of the evidentiary record in this case that the Butzen’s original Verified Complaint and Sign Off Form (Verified Complaint) listed as item 26, a tear in the floor in the kitchen, and required the “dealer to correct” that condition. 9. Neither the Citation and Complaint or the Notice of Hearing cite item 26 as one of the items which had not been corrected and which was therefore part of the Citation in this case. The reason for the failure to cite the item is unknown to this Administrative Law Judge (ALJ). 10. The evidence presented by the Complainants establishes that the linoleum in the kitchen floor has a gouge of two to three inches and based on that evidence presented, it is the same gouge as was referenced in the original Verified Complaint, item 26. 11. Item 4a in the Verified Complaint concerned “Fireplace not plumed (plumbed), framing very bad”. This was not verified by Butzen. Nevertheless, the evidence shows that the Respondent subsequently installed the piping necessary to turn the wood fireplace into a gas fireplace. In doing so, the Respondent cut a rectangular hole in the drywall which needs to be corrected or completed by installing some type of door or similar device. 12. Aside from the referenced items, the remainder of the numbered items have been satisfactorily corrected.

Conclusions Of Law The complaint was verified in this case under A.R.S.41-2153(B)(9) and notice of the verified complaint was served on the Respondent as required by A.R.S. §41-2153(B)(10). In summary, the Citation and Complaint allege violation of A.R.S.§41- 2186.1, failure to comply with the provisions of articles 2 or 4 of the chapter; .12, failure to respond to a verified complaint after notice; .19, failure to provide all agreed on goods and services; and .20, failure to install in a workmanlike manner. 1. Although the Citation and Complaint and Notice of Hearing were properly sent to the Respondent under A.R.S.§§41-2153 and 41-2182, for some unexplained reason, verified item 26, the gouge in the kitchen floor was not referenced by either document. Technically since the issue was not properly noticed and the Respondent has no reason to defend against that which was not noticed, it would be inappropriate to make a determination of suspect legality in light of the due process concerns. 2. The same reasoning applies to item 4a which was not verified by Butzen and therefore was never cited in either the Citation and Complaint or the Notice of Hearing. 3. However the Respondent should be made aware that under A.R.S. 41- 2153(B)(9) the installation of the gas fireplace is still under the original warranty period or may cause the limitation period to commence to run from the date of such installation. This being the case, the fact that the Respondent corrected the fireplace even though it was not required by the Verified Complaint, can require the Respondent to do warranty work for improper or incomplete installation. 4. As to item 26, the Respondent is informed that the failure to cite this in the Citation and Complaint or Notice of Hearing is not attributable to the Complainants. The statute of limitations has not run on this item and the Complainants are free to file a new complaint on the issue. 5. Although due process will not allow a legally binding Order to be entered against the Respondent, it would appear advisable for the Respondent to accommodate the Complainant with respect to the remaining two items in light of the fact that these items may possibly be the subject of a new complaint. Recommended Order In view of the foregoing it is recommended that the instant Citation and Complaint be Dismissed.

Done this day, August 18, 2000

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Department of Building and Fire Safety N. Eric Borg ATTN: Michelle M. Castaneda East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826